STATE OF WASHINGTON, Respondent, v. ZAIDA YESENIA CARDENAS-FLORES, Petitioner.
NO. 93385-5
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
Filed AUG 17 2017
waived her evidentiary claim. We disagree and hold that a criminal defendant may raise corpus delicti for the first time on appeal as a sufficiency of the evidence challenge. On the merits of Cardenas-Flores‘s claims, we hold that the State presented sufficient evidence to establish the corpus delicti and all elements of the crime charged, and we reject her challenge to the jury instructions. Accordingly, we affirm her conviction.
FACTS AND PROCEDURAL HISTORY
On December 18, 2013, Cardenas-Flores and Carlos Austin brought their infant son, C.A., to the emergency room. They reported that earlier that night, Austin had accidentally rolled over onto C.A.‘s leg while they were sleeping near each other on a bed. Both parents were concerned that C.A. had been injured as a result of the rollover. A doctor examined C.A. and ordered X-rays, noting some initial swelling and tenderness around his left leg. After reviewing the X-rays, the doctor reported that “everything looked normal.” Report of Proceedings (RP) (Aug. 19, 2014) at 182-83.
A few days later, Cardenas-Flores took her son to his regular pediatrician for a wellness exam. The pediatrician manipulated C.A.‘s leg and found no deformities, noting the child had full range of motion. The pediatrician and a supervising doctor
reviewed C.A.‘s X-rays and agreed with the emergency room doctor that everything looked normal.
On December 23, Cardenas-Flores and Austin once more rushed C.A. to the emergency room with concerns about C.A.‘s leg. The hospitalist reported that C.A.‘s left thigh was very swollen and tender, and that the infant was “obviously in a lot of pain whenever [the leg] was ... moved.” RP (Aug. 18, 2014) at 65-66. Another X-ray was taken, this time showing a displaced femur fracture.1 The doctor concluded that the fracture occurred recently because it showed no healing in the area and a child as young as C.A. would typically begin healing within 7 to 10 days, if not sooner. Such an injury, according to the physician, would have been “immediately obvious, immediately symptomatic [and] ... caus[ing] immediate pain and swelling.” Id. at 72. The only time C.A. would not feel “excruciating pain” is when his leg was stabilized. Id. at 69, 75.
When asked how C.A. was injured, both parents responded that the December 18 rollover caused the fracture and that the swelling had worsened, prompting them to bring C.A. back to the hospital. The physician concluded that the rollover incident could not have injured C.A. for three reasons: (1) displaced fractures do not typically
occur in rollovers because the bed absorbs most of the energy; (2) the time frame did not support that cause because earlier X-rays clearly showed no fracture from the accident; and (3) multiple medical providers examined C.A. between the rollover and the final hospital visit and found no fracture. Fearing that C.A.‘s injury was the result of nonaccidental
Law enforcement officers interviewed Cardenas-Flores, asking why she took C.A. back to the emergency room. She initially responded that C.A. was fine, though somewhat fussy after the rollover accident on December 18, and that she did not know what happened to him on December 23 that caused his leg to worsen. Upon further questioning, Cardenas-Flores altered her response and said she tried to take her son out of his car seat too fast, which could have caused the fracture. At one point in the interview, Cardenas-Flores said she believed in God and did not want to lie; she explained that she wanted to believe the car seat caused C.A.‘s injury but that it was not the cause. She further confessed that she may have put “too much pressure” on C.A.‘s leg when trying to get him out of the car seat faster and pushed C.A.‘s “left leg out and down to straighten it ... hard enough that it actually did straighten the leg.” RP (Aug. 19, 2014) at 201-02. Cardenas-Flores further admitted that after pushing his leg, C.A. began crying differently from his normal cry, and
when she was told that her son‘s leg had been fractured, she said she knew it was because of her actions.
The State charged Cardenas-Flores with second degree child assault. At trial, she denied pushing her son‘s leg or pulling him from his car seat too quickly. She claimed that she lied to appease the police and that her confession was false. A jury convicted Cardenas-Flores, and the court sentenced her to 31 months in prison, the bottom of the standard sentencing range.
Cardenas-Flores appealed her conviction to Division Two of the Court of Appeals. Among other things, she argued that the State did not produce independent evidence corroborating her confession to establish corpus delicti. State v. Cardenas-Flores, 194 Wn. App. 496, 501, 374 P.3d 1217 (2016). The Court of Appeals affirmed Cardenas-Flores‘s conviction, concluding that she had waived any corpus delicti claim by failing to raise it at trial.2 The appeals court stated that a corpus delicti challenge must be preserved because it “is a judicially created rule of
evidence[,] ... not [a] constitutionally mandated” sufficiency of the evidence rule. Id. at 507-08. Acting Chief Judge Bradley A. Maxa concurred in the result but argued that procedurally, Cardenas-Flores was not precluded from raising her corpus delicti challenge for the first time on appeal. Id. at 522.
Cardenas-Flores filed a petition for review in this court, which we granted. State v. Cardenas-Flores, 186 Wn.2d 1017, 383 P.3d 1015 (2016).
ANALYSIS
This case presents four issues for review: (1) whether corpus delicti may be raised for the first time on appeal; (2) if so, whether the State presented sufficient evidence to establish the corpus delicti; (3) whether the State presented sufficient evidence to sustain a conviction for second degree child assault; and (4) whether jury instructions properly informed the jury that a parent who intentionally touches a child and causes harm may be convicted of assault. We address each issue in turn.
I. A Criminal Defendant May Raise Corpus Delicti for the First Time on Appeal Because It Permeates Any Conclusion on the Sufficiency of the Evidence To Convict
We must first decide whether to consider Cardenas-Flores‘s corpus delicti challenge on appeal. Our decision turns on how we characterize corpus delicti: as concerning only the admissibility of a confession, or as affecting any review of the sufficiency of the evidence to convict. At trial, either characterization
the same result if the defendant‘s confession is uncorroborated. Under the admissibility characterization, the jury will not be allowed to hear the defendant‘s confession and without other evidence, the State cannot prove its case. Under the sufficiency characterization, the prosecution should be dismissed for want of evidence. The two characterizations, however, yield different results on appeal. Under the admissibility characterization, the defendant‘s corpus delicti challenge will be deemed waived if not raised at trial, as it is only an evidentiary objection.
Cardenas-Flores relies on our opinion in Dow, which described corpus delicti as a rule of both admissibility and sufficiency. Pet. for Review at 10 (citing Dow, 168 Wn.2d at 251). She criticizes the Court of Appeals for failing to interpret her corpus delicti claim as a sufficiency of the evidence claim that can be raised for the first time on appeal. Id. at 10-11. The State counters that corpus delicti is a rule of evidence, and that any challenge is waived absent a timely
on our case law, the United States Supreme Court‘s case law, and the underlying purpose of the corpus delicti rule.
A. While Corpus Delicti Contains Traces of an Admissibility Rule, It Is Principally a Rule of Sufficiency
“Corpus delicti means the ‘body of the crime.‘” State v. Brockob, 159 Wn.2d 311, 327, 150 P.3d 59 (2006) (internal
GONZÁLEZ, J. (concurring)—I concur with the majority in result. The State presented sufficient evidence of corpus delicti to properly admit Zaida Cardenas-Flores‘s confession, and the State established all elements of second degree child assault beyond a reasonable doubt. I also concur with the majority that the instructions properly
The central issue before us today is whether a defendant may bring an unpreserved corpus delicti challenge on appeal. To answer this question, we must first determine whether corpus delicti is a rule of evidence that must be preserved or
does not provide so simple and inevitable an explanation as the majority presents. As I will discuss in more detail below, the Dow decision created some confusion by characterizing corpus delicti as pertaining both to
Examining the body of our case law on this subject reveals two significant conclusions. First, corpus delicti and the corpus
EVIDENCE IN TRIALS AT COMMON LAW § 2072, at 2783 (1904). To sustain a conviction, the State must also present proof that the defendant was the actor, but, identity is not part of the corpus delicti. State v. Meyer, 37 Wn.2d 759, 763, 226 P.2d 204 (1951). Altogether, the State must prove injury, criminal agency, and the defendant‘s identity beyond a reasonable doubt. See id.; State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion) (whether a rational trier of fact can find the essential elements of the charged crime beyond a reasonable doubt); State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974) (“[The State] bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense.“).
On the other hand, the corroboration rule bars admission of an uncorroborated confession to prove the corpus delicti unless there is independent proof thereof. Corbett, 106 Wn.2d at 574. Once corpus delicti has been satisfied, a “‘confession may then be considered in connection therewith and the corpus delicti established by a combination of the independent proof and the confession.‘” Id. (quoting Meyer, 37 Wn.2d at 763); accord State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996); State v. Ray, 130 Wn.2d 673, 679, 926 P.2d 904 (1996); State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995); State v. Riley, 121 Wn.2d 22, 32, 846 P.2d 1365 (1993); State v. Smith, 115 Wn.2d 775, 781, 801 P.3d 975 (1990); State v. Ryan, 103 Wn.2d 165, 178, 691 P.2d 197 (1984). Thus,
corpus delicti and the corroboration rule are related yet distinct concepts. See People v. LaRosa, 2013 CO 2, 293 P.3d 567, 572 (“From this corpus delicti concept, we have derived the corpus delicti rule.“).
Second, the history of corpus delicti reveals that it was once used to challenge the sufficiency of the evidence. Though not mandated by the state or federal constitutions, see Dow, 168 Wn.2d at 249, Washington courts have historically analyzed corpus delicti as challenging the sufficiency of the evidence supporting a conviction and reviewing the evidentiary foundation necessary to introduce a defendant‘s statement into evidence. State v. Angulo, 148 Wn. App. 642, 648, 200 P.3d 752 (2009). The cases examining corpus delicti as an issue of sufficiency were decided in the earliest decades of statehood. Timmerman v. Territory, 3 Wash. Terr. 445, 450, 17 P. 624 (1888) (describing the State‘s burden of proving corpus delicti beyond a reasonable doubt); State v. Gates, 28 Wash. 689, 695, 69 P. 385 (1902) (discussing corpus delicti as a matter of sufficiency of the evidence); State v. Pienick, 46 Wash. 522, 646-47, 90 P. 645 (1907) (same). Subsequent cases have described corpus delicti as an evidentiary issue. See, e.g., State v. Marselle, 43 Wash. 273, 275-76, 86 P. 586 (1906) (reversing a conviction based on erroneous admission of uncorroborated statements and remanding for new trial); State v. Thomas, 1 Wn.2d 298, 302, 95 P.2d 1036 (1939) (reviewing trial court‘s corpus delicti ruling admitting a confession); Meyer, 37 Wn.2d at 763-
64 (prior to
The law of constitutional sufficiency of the evidence underwent a sea change when the Supreme Court established the due process sufficiency model in Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Green, 94 Wn.2d at 221-22 (reconsidering the sufficiency of the evidence). Thereafter, courts reviewed sufficiency challenges as admitting the truth of the State‘s evidence and whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Notably, we review a Jackson sufficiency claim under a similar standard of review as a challenge to corpus delicti. Compare id. (“A claim of insufficiency admits the truth of the State‘s evidence and all inferences that reasonably can be drawn therefrom.“), with Aten, 130 Wn.2d at 658 (“In assessing whether there is sufficient evidence of the corpus delicti..., this Court assumes the truth of the State‘s evidence and all reasonable inferences from it in a light most favorable to the State.“).
These markedly similar standards of review as well as the historical usage of corpus delicti to challenge sufficiency indicate traditional use of corpus delicti to challenge the sufficiency of the evidence on appeal has been subsumed by the
Jackson constitutional due process model.
Corpus delicti therefore is at the heart of a Jackson challenge. In this, the majority is correct: traditional corpus delicti pertains to sufficiency of the evidence and may be first raised on appeal—not as an independent corpus delicti claim but as a constitutional sufficiency challenge under Jackson. See majority at 8-14; State v. Alvarez, 128 Wn.2d 1, 9-10, 904 P.2d 754 (1995);
Washington courts have not explicitly recognized the assimilation of the traditional corpus delicti rule by constitutional due process claims. Cf. United States v. Brown, 617 F.3d 857, 861-62 (6th Cir. 2010) (noting the development of modern sufficiency of the evidence rules and the tension between corpus delicti and Jackson). Our failure to do so may be due to the fact that the evidentiary corroboration rule continues to exist. See Angulo, 148 Wn. App. at 648-52. Moreover, until the current case, this court has never been asked whether the evidentiary corroboration rule may be first raised on appeal. This is likely because
defense counsel generally challenge the issue at trial, thus preserving it for appeal. See, e.g., State v. Stuhr, 1 Wn.2d 521, 524, 96 P.2d 479 (1939) (defendant moved to dismiss at trial for failure to prove the alleged crime); State v. Goranson, 67 Wn.2d 456, 458-59, 408 P.2d 7 (1965) (dismissing the case for failure to prove corpus delicti at the close of State‘s evidence); Corbett, 106 Wn.2d at 571 (dismissing charges at trial for failure to prove corpus delicti); Ray, 130 Wn.2d at 676 (reviewing trial court‘s ruling that the State established corpus delicti); Aten, 130 Wn.2d at 654 (defendant moved to exclude confession and dismiss the charges); State v. Brockob, 159 Wn.2d 311, 320, 322, 150 P.3d 59 (2006) (defense counsel raised corpus delicti at trial); Dow, 168 Wn.2d at 247 (defendant moved to exclude statements for lack of corpus delicti). When argued below, the Court of Appeals has consistently held that the corroboration rule is strictly evidentiary and must be preserved.
only as an artifact of our state‘s common law, and it should be respectfully retired to the annals of history.
Turning to the case at hand, I depart from the majority‘s characterization of corpus delicti as tantamount to a sufficiency of the evidence claim that can be raised for the first time on appeal.3 Majority at 6-8. To reach this conclusion, the majority relies in large part on this court‘s language in Dow, 168 Wn.2d at 249, stating that corpus delicti is a rule both of admissibility and sufficiency. Ignoring Jackson‘s assimilation of traditional corpus delicti, the majority‘s reasoning here would be correct.
But, Dow does not exist in a vacuum. To properly understand the decision and how it integrates into our larger jurisprudence on this subject, we must
examine Dow in light of Jackson. Thus, Dow‘s language equating corpus delicti with admissibility and sufficiency conflates corpus delicti‘s traditional role with the current corroboration rule. Id. This conflation is easily made, as the Dow court had not yet recognized Jackson and its effects on Washington‘s sufficiency law. The opinion goes on to explain that “our corpus delicti cases have always required sufficient evidence independent of a defendant‘s confession to support a conviction.” Id. at 254. Because Jackson regulates sufficiency claims, Dow correctly holds that a conviction based on insufficient evidence cannot stand.4
Importantly, the question we must answer today—whether the corroboration rule may be raised for the first time on appeal—was not before the Dow court. In that case, the defendant sought at trial to exclude statements he made to the police on the ground that the State failed to satisfy corpus delicti, thus preserving the issue for review. Id. at 247. Though the majority dismisses this “procedural difference” as “immaterial,” majority at 14, its analysis fails to recognize the critical fact that Jackson has subsumed corpus delicti‘s sufficiency role. A reexamination of our case law to accommodate this critical fact shows that the
“procedural difference” between the current case and our decision in Dow is hardly immaterial
In addition to reevaluating our corpus delicti case law taking Jackson into consideration, we must similarly reexamine the policy rationales underlying the rule. The purpose of the corroboration rule is to prevent convictions based solely on uncorroborated confessions. Majority at 19 (citing Dow, 168 Wn.2d at 249). According to the majority, admitting a false confession without an objection at trial would not serve this goal because on review, the court would accept the confession as true. Id. at 19-20 (citing KENNETH S. BROUN ET AL., McCORMICK ON EVIDENCE § 145, at 805 (7th ed. 2013)).
But safeguards exist to protect against this situation. Objecting to corpus delicti at trial allows the trial judge to determine the admissibly of a confession. We rely on a trial judge‘s knowledge and experience to evaluate the corroborative evidence presented and make an evidentiary ruling to admit or exclude a confession. See, e.g., State v. Mason, 160 Wn.2d 910, 926, 162 P.3d 396 (2007) (describing the trial judge as an evidentiary “gatekeeper“). Should the defense attorney fail to raise a corroboration rule objection at trial, the defendant is not left
without recourse. The defendant may raise corpus delicti under sufficiency of the evidence and under ineffective assistance of counsel. See Salinas, 119 Wn.2d at 201 (reviewing claims for insufficient evidence); C.D.W., 76 Wn. App. at 764-65 (reviewing ineffective assistance of counsel for failure to raise corpus delicti). Should a defendant prevail on an ineffective assistance claim, the remedy will be a new trial, C.D.W., 76 Wn. App. at 764-65, at which point the defendant could bring a corroboration rule challenge and move to dismiss the case. See Dow, 168 Wn.2d at 254 (noting the trial court may dismiss a charge for insufficient evidence (citing State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986)))).
Furthermore, because the majority does not recognize the changed landscape of our corpus delicti case law under Jackson, it does not acknowledge the practical goals of the corroboration rule such as encouraging parties to make timely objections, providing the trial judge an opportunity to address the issue before it becomes an error on appeal, and promoting the important policies of economy and finality. State v. O‘Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). The trial court should be allowed to correct an error in order to avoid the time and expense of an unnecessary appeal if possible. 2A KARL B. TEGLAND, WASHINGTON PRACTICE, RULES PRACTICE RAP 2.5, at 213 (8th ed. 2014) (citing State v. Scott, 110 Wn.2d 682, 757 P.2d 492 (1988)); McCORMICK, supra, § 145, at 805 (admissibility
requirement encourages the trial judge to scrutinize nonconfession evidence prior to the prosecution proving a confession).
This approach also precludes counsel from attempting to gain a tactical advantage by allowing unknown errors to go undetected and then seeking a second trial if the first decision is adverse to the client. And it requires that the State establish admissibility of the defendant‘s confession before it is admitted, thereby avoiding the possibility that the jury would hear the confession, only to be later asked to set it aside and to determine whether the government‘s remaining evidence is sufficient to establish the corpus delicti. “‘One might doubt whether jurors, having heard the defendant‘s confession to a heinous crime, could dispassionately discharge this duty.‘” Langevin v. State, 258 P.3d 866, 870 (Alaska Ct. App. 2011) (quoting Dodds v. State, 997 P.2d 536, 541 (Alaska Ct. App. 2000)).
While insufficient evidence claims had once been brought under traditional corpus delicti, the Jackson model has replaced this procedural pathway for appellate review. Consequently, such corpus delicti claims no longer exist independently. The corroboration
Here, Cardenas-Flores failed to object and therefore she has waived her right to raise the issue on appeal.
With these observations, I join the majority in result.